Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27760
THIRD DIVISION Docket No. MW-26795
89-3-85-3-698
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The discipline imposed upon Track Laborer M. R. Kopp for
allegedly being accident prone was without just and sufficient cause and on
the basis of unproven charges (System File 1984-11
T.R.R.A./013-293-14).
(2) The claimant's record shall be cleared of the charge leveled
against him."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant was advised to attend a hearing "...in connection with
(his)... being injury prone." The hearing was held on October 23, 1984. The
record shows that the Claimant was hired on August 22, 1977, and that he had
suffered the most recent of twelve (12) personal injuries on October 10, 1984.
On that date he injured himself while putting in a clip bolt while working his
assignment as track laborer. After the hearing the Claimant was advised by
the Assistant Chief Engineer that he had been found guilty as charged and that
his injuries were caused by his failure to be able to detect unsafe conditions
which would cause him injury. The Claimant was also advised that his safety
record needed to be improved or "...stronger measures (would) be necessary."
The Organization subsequently filed an appeal with request that information
about the hearing and related matters be removed from the Claimant's file. It
was the position of the Organization in this first and subsequent appeals that
the Claimant had broken no rule, and that there was insufficient evidence to
support the Carrier's decision to hold the hearing and find him guilty of
being injury prone.
Form 1 Award No. 27760
Page 2 Docket No. MW-26795
89-3-85-3-698
The first issue which the Board must deal with is whether the instant
claim should be sustained because no rule was cited. The charge against the
Claimant is that he engaged in a pattern of behavior which the Carrier held to
be potentially injurious to his own person and his fellow employees and the
public. The Board has ruled on such claims in the past, on grounds that such
behavior "directly challenges or endangers the fulfillment of the employer's
responsibilities which underlie all --- written rules of the employer governing employee behavior" (
Board believes reasonably disposes of this first objection by the Organization, states also the foll
"The Division finds that accident-proneness
is a behavioral characteristic of certain
employes which endangers the fulfillment of a
carrier's responsibilities; that a carrier need
not have had a specific rule against same and
that, unless the investigation rule directly
requires that a matter to be investigated must
involve an alleged violation of a written operating or safety rule, a charge of accidentproneness as
against an employe and may be properly investigated...
Rule 24(a), cited by the Organization in its submission, does not state that a
specific Rule must be cited in advising employees of investigations, but it
states that a "specific charge" must he made. The notice of investigation
fulfilled this latter requirement. As a general arbitral axiom, arbitrators
have ruled that it is not necessary to have a written shop rule in order to
rule on claims dealing with discipline for offenses involving such types of
behavior as insubordination and theft, and that companies in this and other
industries need not have such rules in order to levy discipline for such types
of alleged behavior. As a matter of precedent in this industry, there have
been numerous Awards issued by the various Divisions and by Public Law Boards
which have assumed jurisdiction over cases parallel to the instant one. Of
those cited by the organization, in its defense of the claim, it is true that
some of the sustaining Awards deal with claims where discipline was levied for
alleged violation of a specific company Rule. Such is the case in Second
Division Award 6306; Award 1 of Public Law Board 1103; and Third Division
Award 16600. There are other sustaining Awards cited by the Organization,
however, which show that neutral forums in this industry have forged ahead in
their determinations in accordance with the reasoning found in First Division
Award 20438 cited above. In those cases the fact that a Rule was not cited by
the Carrier when making a charge did not forestall conclusions, in those
cases, on other grounds.
Accident prone cases can be brought forth before the Board when
alleged Rules violations are cited by the Carrier in their original notice of
hearing. There is sufficient precedent, however, to suggest that absence of
such Rule citings need not lead to forfeiture of such cases by Carriers on
that basis alone.
Form 1 Award No. 27760
Page 3 Docket No. MW-26795
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The second issue raised by the Organization deals with merits. Is a
record of twelve (12) personal injuries in seven (7) years of service sufficient evidence to
prone? There is clearly divided arbitral precedent on the question of "statistical proof" and the ev
value of such proof is found in Special Board of Adjustment 18, Decision 4714;
Public Law Board 1103, Award 1; and Second Division 6306. The reasoning used
in some of these Awards becomes, at times, tortuous. For example, Second
Division Award 6306 states:
"A conclusion that a person is accident
prone is not logical or reasonable. The
mathematics of Possibility and Probability enter
into this matter. It is possible that Nobody in
the carrier's service would have an accident for
a year, although it is not probable. It is
equally possible that one person in the employ
of the carrier at this location would have all
of the accidents in one year. This statistical
and mathematical concept would not even infer
that the person having those accidents had violated the safety rules.
In Award 1 of Public Law Board 1103 the referee refers back to his own
Decision 4714 of Special Board of Adjustment 18 and reasons as follows:
"Ordinarily an employe may be discharged
under certain circumstances for negligent involvement in a serious accident or for negligent
involvement in two or more less serious accidents. In such cases the employe is entitled to
a hearing in which the employer must carry the
burden of proving that the accident occurred
under circumstances such that the employe could
have prevented or avoided the accident if he had
performed and reacted in the manner expected of
an average, reasonable and prudent individual.
In the present case, the employer seeks to avoid
that burden of proof and to establish a different ground for discharge -discharge without
fault for involvement in unexplained accidents
more numerous than average.
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The fact of the matter is that accident
proneness is a rather complex problem. The
Lawyer's Medical Cyclopedia Revised Volume 3
has an entire chapter of 4 pages devoted to the
subject and points out that there are physiological, Pmotional and psychiatric bases for the
condition which may be detected and treated by
competent sedical personnel.
Form 1
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Award
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27760
Docket
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MW-26795
89-3-85-3-698
The complicated nature of the problem is
well illustrated in a lengthy arbitration
decision by an experienced and respected
arbitrator in a reported case designated as
Northrup Aircraft, Inc., 24 LA 732. In that
case, the discharge was properly handled by the
employer as a medical discharge, and the decision was based on the informed opinion of a
physician experienced in industrial medicine.
There was medical evidence for both parties and
the arbitrator's opinion refers to the fact that
the dispute involved 'a highly specialized aspect of industrial psychology.'
The claim as asserted in the present case
asks for a ruling that the carrier violated the
Agreement by preferring a charge of accident
proneness. It must be concluded that when the
carrier elects to discharge for 'accident proneness' as distinguished from negligent responsibility
handle the matter as a medical discharge based
upon competent medical evidence and allow the
employe the contractual rights provided to
contest any medical discharge."
There are other Awards, however, issued in this industry which reject the type
of thinking found in the three Awards cited in the foregoing. For example,
Award 57 of Special Board of Adjustment 589 states:
"(A) Claimant is not entitled to an unlimited
number of opportunities to flout the standards
of reason and due care in the exercise of his
prescribed duties before (a) Carrier may take
summary action."
Similar conclusions are found, with respect to accident proneness, in First
Division Award 20438, Second Division Awards 5205, 5962, 8912, and more
recently Second Division Award 11237 and Third Division Award 24534. Second
Division Award 8912, as well as Award 1 of Public Law Board 2828 states that
an employer is not required to retain in its service an employee who does not
perform his work with safety to "himself and to other employees." Third Division Award 24534 examine
Division Award 6306 and has concluded, as the Board does again here, that this
Award represents reasoning which has not been followed by the majority. It
should be underlined that a number of these Awards deal with dismissal of
employees for accident proneness. In the instant case, the Carrier effectively gave a first w
of arbitral precedent which the Board finds to be the more reasonable, the
instant claim cannot be sustained. The Carrier correctly concluded that the
Claimant was accident prone because he sustained twelve (12) injuries in seven
(7) years. The corrective actions the Carrier took were neither arbitrary nor
capricious.
Form 1 Award No. 27760
Page 5 Docket No. MW-26795
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ear - Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.